Over the past 20 years, States have significantly
expanded legislation allowing for prosecution of
juveniles in adult criminal court. This trend has
increased in recent years to permit transfer to adult court
at lower ages and for more
offenses.221 According to NCSL, 17 States in 1995 further expanded
or amended their waiver statutes.222

Today, all 50 States and the District of
Columbia allow for juvenile prosecution in criminal court
by one or more transfer mechanisms, according to
GAO.223 The most common mechanism is
judicial waiver, which gives juvenile court judges
discretion to waive juvenile cases to adult criminal court.
Other transfer mechanisms include direct file, which
provides prosecutorial discretion to file criminal
charges against juveniles directly in criminal court,
and statutory exclusion, which mandates juvenile
prosecution in adult court.224

The widespread enactment of legislation
enhancing juvenile exposure to criminal prosecution is a
direct response to reported escalations of juvenile
violent crime in recent years. According to OJJDP,
the number of serious crimes, such as murder and
aggravated assault, committed by juveniles increased
68 percent from 1988 to 1992.225 Despite recent
declines, these rates may worsen, according to reports cited
by the Campaign for an Effective Crime Policy
(CECP), which predicts that juvenile violent offenses will
continue to rise as the number of youth ages 14 to
17 increases 20 percent by the year 2005.226

The dramatic expansion in transfer legislation
is based on the premise that some offenses warrant criminal prosecution and some juveniles are
beyond rehabilitation. Consequently, State legislation
emphasizing accountability by violent juvenile
offenders focuses on transferring serious, violent juvenile
offenders and habitual offenders, according to
GAO.227

The impact of recent legislation providing for
enhanced transfer is unclear. Less than 2 percent of all formal
juvenile delinquency cases -- were judicially waived each
year from 1988 to 1992. In 1988, only 1.2 percent of all
cases were waived to adult criminal court, or 7,005 of
569,596 cases. The number of judicially waived cases
steadily climbed to 11,748 of 743,673 cases in 1992, to
comprise 1.6 percent of all cases.228

Of the small number of juvenile cases waived to criminal court, more nonviolent offenders
were waived than violent offenders. Nonviolent
offenders comprised 66 percent of all juveniles waived to
adult court in 1992, according to
GAO.229
CECP reports that nonviolent offenders represented 57 percent
of all cases waived in 1993.230

These statistics do not include juvenile transfers
to criminal court via a prosecutor's exercise of
concurrent jurisdiction (direct file) authority and
statutory exclusion. It is unlikely that the
above-mentioned statistics would change significantly, however,
given a recent GAO survey indicating that judicial
waiver accounts for the majority of juveniles prosecuted
in adult court.231
Nor do these statistics include
waivers made pursuant to recent expansions of transfer
legislation. Clearly, additional studies are needed
to determine whether this expansive transfer
legislation has led to increased juvenile criminal prosecution
of serious, violent, and repeat juvenile offenders.

In addition, more analysis needs to focus on the
impact of juvenile criminal prosecution. The
current data, including results from studies in Idaho,
New Jersey, and New York, indicate that expanded transfer provisions over the past 20 years have
not deterred juvenile crime. Separate studies in
Florida and Minnesota confirm that juveniles transferred
to adult criminal court have higher recidivism
rates than juvenile offenders retained in juvenile
court.232

For example, a study reported by CECP that
analyzed recidivism rates of juveniles prosecuted
in Florida criminal courts found that juveniles
prosecuted as adults were more likely to commit
additional crimes and more serious offenses upon
release than their counterparts adjudicated in juvenile
court.233

Judicial waiver, statutory exclusion, and direct
file are three mechanisms used to transfer juvenile
offenders to adult court. Judicial waiver is the
most popular method; 47 States and the District of
Columbia provide judicial discretion to waive
certain juveniles to criminal court. Thirty-seven States
and the District of Columbia have one or more
statutory exclusion provisions, and 10 States and the
District of Columbia have direct file
provisions.235

Other mechanisms to enhance juvenile transfers
to adult criminal court include presumptive
waiver, which mandates juvenile transfer unless the
juvenile offender can prove he or she is suited to
juvenile justice system rehabilitation. Usually the State
bears the burden of proof to show that a juvenile
should be transferred to adult court. Presumptive
waiver shifts the burden of proof to the juvenile to
show that he or she should not be transferred.
Twelve States and the District of Columbia provide for
presumptive waiver in certain instances, such as
serious felonies, according to NCJJ and the Institute
for Law and Justice (ILJ). NCJJ reports that nine
of these jurisdictions have enacted their statutes
since 1992. ILJ reports that New Jersey relies solely
on presumptive waiver.236

Eighteen States have enacted "once waived,
always waived" legislation, under which a juvenile
once waived to adult court subsequently must be
charged in criminal court regardless of the offense. For
example, in Virginia, any juvenile previously
convicted as an adult is excluded from juvenile court
jurisdiction.237 In addition, 10 States permit and 12
States mandate a judge to order waiver in circumstances
in which the offender previously has been
adjudicated delinquent.238

Regardless of the statute, prosecutors maintain a
critical role in determining the forum of prosecution.
In addition to direct file legislation, prosecutors
may charge a youth with an offense mandating
statutory exclusion and transfer to adult court. NCJJ
observed that prosecutorial discretion in the absence of
guidelines for the exercise of that discretion can result
in inconsistent treatment of juvenile offenders and
urged legislation providing uniform prosecutorial
guidelines.239
NCJJ notes that a 1995 Utah State
court decision found unconstitutional the State's direct
file legislation on the basis that the legislation
infringed on a State constitutional provision guaranteeing
the uniform operation of State law.240

In addition, several States provide statutory
measures for ameliorating the consequences of
waiver and transfer decisions. For example, 22 States
allow criminal court judges to return statutorily
excluded or direct-filed cases to juvenile court, which
accounts for more than 40 percent of the States that
exclude youth from juvenile court or direct file juveniles
to adult court, according to NCJJ.241
In addition,
17 States authorize criminal courts to review
juvenile court waiver decisions and/or prosecutorial
direct filings, according to ILJ.242

Transfer Provisions and Trends

State policymakers designate different ages at
which individuals no longer may be adjudicated
delinquent in juvenile court. For example, original
juvenile court jurisdiction extends through age 17 in
37 States and the District of Columbia, age 16 in
10 States, and age 15 in 3 States.243
Beyond those
ages, individuals are deemed to be adults and must
be held criminally responsible for their actions
and prosecuted in criminal court.

Juvenile court judges may weigh a variety of
factors in determining whether to waive juveniles
under their jurisdiction to adult court. All States have
incorporated the constitutionally required factors enumerated by the U.S. Supreme
Court.244 These factors include the seriousness of the alleged offense and the need to protect the community; whether
the alleged offense was committed in an aggressive,
violent, premeditated, or willful manner; whether
the alleged offense was against a person or property;
the prosecutive merit of the complaint; whether
the juvenile's associates will be tried in adult
criminal court; the juvenile's sophistication, maturity,
record, and previous history; and the reasonable
likelihood of rehabilitation.245

Legislators have expanded transfer provisions
by providing or mandating transfer for certain
offenders based on offense and age. During the past
4 years, 24 States added crimes for which
juveniles can be criminally prosecuted, and 6 States
lowered the minimum age for transfer to 14.246

Many of these State provisions mandate or allow transfer of those juveniles charged with any
conduct that would constitute a felony if committed by
an adult. Thirteen States mandate and four States
permit this type of transfer for juveniles 16 and
older. Mandatory transfer provisions also apply to
certain offenders age 14 and older in Connecticut,
Idaho, the Virgin Islands, and West Virginia, and age
13 and older in New York. Discretionary transfers
apply to offenders as young as age 10 in South
Dakota and Vermont.247

Alarmed by reports that gun homicides have
nearly tripled since 1983,248 several States have
enacted transfer provisions for juveniles who commit
offenses with firearms. In Indiana, Mississippi,
and Oregon, juveniles who violate certain firearms
laws must be prosecuted as adults. Illinois
mandates criminal prosecution of juveniles age 15 and
older who violate the State's gun-free-school-zone laws.
A juvenile age 14 or older in Arkansas, age 16 or
older in Kansas, and under age 18 in the District of
Columbia may be transferred to adult criminal
court for a violation of those jurisdictions'
weapon-free-school-zone laws.249

Some legislatures require any juvenile, regardless
of age, to be transferred for certain offenses. For
example, in West Virginia, any child who commits a violent criminal act must be prosecuted in
adult criminal court.250 In New York, any child with
a specific prior record of offenses who commits a felony must be criminally prosecuted.251 In Florida, any juvenile who commits auto theft or carjacking resulting in serious injury must be prosecuted
in criminal court.252 In addition, several States
provide judicial discretion to waive any juvenile regardless
of age to criminal court based on the specific offense.

In addition, in 1995 many States established
lower ages at which juveniles may be prosecuted in
criminal court. For instance, Idaho passed legislation
providing for waiver of juveniles under age 14 who
commit certain felonies. Nevada lowered from 16 to 14
the age at which juveniles are subject to
discretionary judicial waiver. West Virginia also lowered from 16
to 14 the age of discretionary transfer for certain
juveniles charged with serious crimes. New
Hampshire and Wisconsin lowered the maximum age of
original juvenile court jurisdiction from 17 to
16.254

New York has enacted broad legislation
providing for the transfer of juveniles to adult criminal
court. In that State, juveniles may be prosecuted in
adult criminal court at age 13 and older when
charged with a violent felony. Juveniles with a specific
prior record of offenses are prosecuted in adult
criminal court at age 14 and older when charged with
robbery, burglary, or assault and at any age when charged with a
felony.255 Moreover, in New York, all 16- and 17-year-olds are prosecuted in
criminal court.256 According to a New York
Times editorial, Governor George Pataki wants to send all
16-year-olds currently in juvenile facilities to adult
prisons, regardless of the offense.257

Florida has followed in this legislative trend. In
that State, prosecutors may file charges directly in
criminal court against any juvenile age 16 or older
who commits a felony, any juvenile age 14 or older
who commits a violent felony or burglary, and any
juvenile who commits a homicide. In addition,
juvenile court judges may waive to criminal court any
juvenile age 14 or older based on certain
findings.258

Offenders Judicially Waived to Criminal Court

Of the small fraction (less than 2 percent) of
juvenile cases judicially waived to criminal court,
drug offenders from 1988 to 1992 had the highest
likelihood of waiver, according to a GAO study. The
judicial waiver rate for drug offenders was 3.1
percent in 1992, down from 4.4 percent in 1991.
Offenses against the person consistently ranked second,
with a 1992 waiver rate of 2.4 percent. Offenses
against property ranked third, with a 1992 rate of 1.3
percent, and offenses against public order had a rate
of 0.8 percent.259

Moreover, nonviolent offenders comprised 66 percent -- the clear majority -- of all juveniles waived
to adult criminal court in 1992, according to
GAO's transfer study. Nonviolent offenders included
property offenders, who constituted the largest
proportion of all waived cases at 45 percent; drug offenders,
who made up 12 percent of waived cases; and other
offenders, at 9 percent. In contrast, 34 percent of
cases waived were offenses against the
person.260

According to OJJDP, another study reported that nonviolent offenders in 1993 continued to make
up the majority of waived cases, representing 57
percent of all cases waived (38 percent of cases
waived were property offenders, 10 percent were drug
offenders, and 9 percent committed offenses
against the public order). On the other hand, that
study reported that offenses against the person rose to
42 percent of all waived cases.261

As mentioned, transfer legislation targets
violent offenders as well as repeat offenders. These
studies do not indicate, however, if any of the large
numbers of nonviolent offenders waived to adult
criminal court had a history of violent offending or were
repeat nonviolent offenders.

Juvenile waiver and transfer provisions have a
tremendous impact on a young person's life.
Prosecution in criminal court exposes juveniles to the same
penalties as adults. They may face a life or death
sentence, incarceration in State prison, and a permanent
criminal record with attendant disabilities. Juveniles
adjudicated in juvenile proceedings, on the other
hand, generally must be released at age 21, receive
rehabilitative treatment in a juvenile facility, and may be
permitted to have their juvenile records
expunged.262

Moreover, as mentioned previously, studies
suggest that juveniles criminally prosecuted and
incarcerated in an adult facility have the same or higher
recidivism rates. Other studies have also found
that youth incarcerated in adult institutions are five
times more likely to be sexually assaulted, twice as
likely to be beaten by staff, and 50 percent more likely
to be attacked with a weapon than their
counterparts in a juvenile facility.263

The NCJFCJ advocates caution in juvenile
transfer. The council maintains that:

Juvenile delinquency jurisdiction should be to age 18 in every State. In most cases,
juvenile offenders can be effectively maintained in
the juvenile justice system. In rare instances,
the most violent offenders cannot be rehabilitated within the juvenile system and should be
transferred for adult prosecution. However, the decision to transfer should only be made by
the juvenile or family court judge.264